2018 (4) TMI 238 - HC - Customs

Validity of examination order of goods - N/N. 26/2015-2020 dated 01.09.2017 - the problem expressed by the importer/petitioner is that the cargo contains children toys and there are several varieties of children toys and if sample is drawn from each of the category of toys then it will be an expensive affair and totally unviable - Held that - respondent/department is permitted to draw representative samples, which shall not exceed 15% of each variety of the cargo, which has been imported - the respondents shall draw representative samples of one(1) piece per variety - petition disposed off.

Summary

Issues:
Petitioner seeks to quash examination order related to compliance with Director General of Foreign Trade Notification. Whether the notification can be applied to the consignment dispatched before its publication. Whether the petitioner is entitled to release the cargo containing children toys without extensive testing.

Analysis:
The petitioner filed a writ petition to quash the examination order concerning compliance with a specific Director General of Foreign Trade Notification. The notification required testing by an independent laboratory to ensure the safety of imported children's toys for sale in the domestic market. The petitioner argued that the notification, issued after the consignment was dispatched, should not apply. However, citing a previous court decision, the contention was rejected, emphasizing that the notification's effective date determines its applicability.

Considering the recent notification's impact, the court acknowledged the necessity of testing the cargo at an approved lab in New Delhi before release. The petitioner expressed concerns about the cost and viability of testing multiple categories of children's toys. The revenue's counsel highlighted the importance of rigorous testing for consumer safety before permitting release for home consumption.

To address the concerns raised by both parties, the court ordered the department to draw representative samples not exceeding 15% of each variety of the imported cargo, allowing one piece per variety. The customs house agent of the petitioner would witness the sample drawing process. The samples would undergo testing at an approved laboratory, with the petitioner bearing the testing costs upon demand and advance payment request.

The court set a timeline for sample drawing within a week of the order receipt, followed by a four-week testing period at the laboratory. Upon receiving the test report, the department was directed to make decisions within two weeks. The writ petition was disposed of with no costs, and connected miscellaneous petitions were closed, providing a comprehensive resolution to the issues raised regarding the cargo release and testing requirements.